Wisconsin prosecutors appeal for protection from blowback in partisan probe

CHICAGO – The three-judge panel of the U.S.Court of Appeals for the 7th Circuit cut through attorney arguments with the efficiency of a buzz saw on Tuesday, eliminating anything the court found extraneous to the legal questions of the day: Whether a lower court had the right to shut down a politically charged John Doe investigation in Wisconsin, and whether a civil rights lawsuit filed against the investigation’s prosecutors should go on.

At one point, legal counsel for John Doe special prosecutor Francis Schmitz went into a flowery oration about the “career prosecutors” who were merely “fulfilling their oaths of office” when they launched a two-year secret investigation into dozens of conservative organizations in Wisconsin.

Judge William Bauer cut him off with a question: “Who commences a John Doe proceeding?”

Attorney Joseph Russell attempted to make the case that Wisconsin’s unique John Doe proceedings, which operate like a grand jury investigation without the benefit of a jury of peers and in secret, is backed by multiple levels of judicial oversight.

FIRST AMENDMENT FIGHT: Political activist Eric O’Keefe is suing prosecutors in a federal civil rights complaint. A 7th Circuit judge on Tuesday called the secret nature of a Milwaukee County district attorney’s investigation into O’Keefe and other conservatives “screaming with unconstitutionality.”

But he acknowledged that one presiding John Doe judge is vested with exceptional powers to compel witnesses to testify in determining whether a crime has been committed. Targets and witnesses are forced, through a court-issued gag order, to remain silent about any and all details of the probe, even prohibited from telling anyone they have been questioned – or face contempt of court charges.

“Why not eliminate the judge, too, and just put the prosecutor in charge? That would be cheaper,” Judge Bauer joked, pointing to similarities and differences between the John Doe proceeding and grand jury investigation.

Judge Frank Easterbrook questioned the constitutionality of such a secrecy order, asserting that it is “screaming with unconstitutionality.”

That matter, however, is not up for review before the court, which on Tuesday heard the appeal of John Doe prosecutors, led by Milwaukee County District Attorney John Chisholm, two of his assistant DAs, Schmitz, and contracted investigator Dean Nickel.

Chisholm, a Democrat, launched the meandering investigation in August 2012 and, according to records, was joined in that investigation by the Government Accountability Board, the state’s campaign finance and elections monitor. The probe spread into five counties, and was punctuated last October with what sources have described as “simultaneous, predawn, paramilitary-style” raids of conservatives’ homes. Officials in those raids confiscated conservatives’ files, phone and computer records, and office equipment.

The conservatives are seeking personal damages from the prosecutors and the investigator.

The prosecutors immediately filed an appeal with the 7th Circuit asking the court to overturn the injunction and the lower court’s denial of their motion to dismiss the suit. They also want the court to recognize their right to qualified and absolute immunity; rights generally afforded to prosecutors, except in cases where they abuse their official power – precisely what the defendants allege.

On Tuesday, the prosecutors, through their attorneys, vaguely stood by the theory they’ve apparently employed throughout their court-administered dragnet, that the conservative groups may have illegally coordinated with Wisconsin Gov. Scott Walker’s campaign during the state’s partisan recall drives. The defendants argue that the groups coordinating with one another to the benefit of a candidate would be an in-kind contribution, regulated under Wisconsin campaign finance law.

That theory has been debunked directly by two judges, including presiding John Doe Judge Gregory Peterson, who in January quashed several subpoenas in the probe saying they failed to show probable cause that a crime was committed.

In his ruling, Randa said the prosecutors’ theory was “simply wrong,” because it effectively transforms issue advocacy (communications that do not express support of or opposition to a particular candidate) into express advocacy (which does). Issue advocacy is much less regulated than express political speech.

Russell, attorney for the special prosecutor, called Randa’s ruling unprecedented, taking issue with the judge’s colorful language claiming that the legal theory and its accompanying investigation were akin to the “gulag and the guillotine.”

He asked the appeals court to “vacate in its entirety” Randa’s ruling because it has “left a considerable stain,” presumably on the prosecutors.

The judges responded to the request with something like shock.

“What are you asking us for, to tell the district court to say something else?” Easterbrook scolded. “We do not vacate opinions, we review judgments.”

Samuel Leib, attorney for Milwaukee County District Attorney Chisholm and his assistants, cited multiple cases in arguing for immunity for the prosecutors. He asked the judges to dismiss the federal civil rights suit by arguing that the conservative targets could have sought relief at the state level.

That idea is at the heart of the prosecutors’ defense, that they are prosecutors and thus should be protected from such civil right lawsuits and that federal courts should butt out of state court business.

And the 7th Circuit did voice concerns about the protections of federalism.

“That’s one of the questions that bothers me most: Why file a lawsuit in federal court?” Chief Judge Diane P. Wood asked the plaintiffs. “You took the position that the Wisconsin court system is incapable of solving” this issue.

Plaintiffs’ attorneys defended the federal suit by pointing to the investigation itself as evidence of the partisan nature of Wisconsin’s courts.

Mark DeLaquil, legal counsel for O’Keefe and the Wisconsin Club for Growth, said the John Doe judge quashed the subpoenas several months ago. The state Supreme Court, which has jurisdiction over the matter, has yet to take up the case. Meanwhile, the prosecutors continue to hold the personal information of the targets, including donor lists, strategy memos, contacts, and more – information that DeLaquil argues the investigators have no right to possess.

O’Keefe’s attorneys say what cannot be stalled are the First Amendment rights of the conservatives, trampled underfoot by the prosecutors of a partisan probe that was launched in retaliation against Walker and his allies.

“There is an important federal interest in trying the case,” DeLaquil told the panel. “It is the right to speak and the public’s right to hear that speech.”

Without such protection, the attorney said, the John Doe process and its chilling of political speech by conservatives “is the punishment.”

Schmitz declined comment, directing all comments to his attorneys. The prosecutors’ attorneys declined to comment, stating they would let the public record speak for itself.

M.D. Kittle is bureau chief of Wisconsin Watchdog and First Amendment Reporter for Watchdog.org. Kittle is a 25-year veteran of print, broadcast and online media. He is the recipient of several awards for journalism excellence from The Associated Press, Inland Press, the Wisconsin Broadcasters Association, and others. Kittle's extensive series on Wisconsin's unconstitutional John Doe investigations was the basis of a 2014 documentary on Glenn Beck's TheBlaze. His work has been featured in Town Hall, Fox News, NewsMax, and other national publications, and his reporting has been cited by news outlets nationwide. Kittle is a fill-in talk show host on the Jay Weber Show and the Vicki McKenna Show in Milwaukee and Madison. Contact Kittle at [email protected]